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S.J.R. 15 Enrolled

             1     

JOINT RESOLUTION AMENDING RULES OF CIVIL

             2     
PROCEDURE ON PEER REVIEW

             3     
2012 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: Jerry W. Stevenson

             6     
House Sponsor: Paul Ray

             7     
             8      LONG TITLE
             9      General Description:
             10          This joint resolution amends the Rules of Civil Procedure to include protections against
             11      discovery and admission into evidence for privileged matters connected to medical care
             12      and peer review.
             13      Highlighted Provisions:
             14          This resolution:
             15          .    amends Rule 26 of the Utah Rules of Civil Procedure; and
             16          .    establishes additional privileges that protect matters connected to medical care and
             17      peer review against discovery and admission into evidence.
             18      Special Clauses:
             19          This resolution provides an immediate effective date.
             20      Utah Rules of Civil Procedure Affected:
             21      AMENDS:
             22           Rule 26, Utah Rules of Civil Procedure
             23     
             24      Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
             25      of the two houses voting in favor thereof:
             26          As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
             27      rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
             28      all members of both houses of the Legislature:
             29          Section 1. Rule 26 , Utah Rules of Civil Procedure is amended to read:


             30           Rule 26. General provisions governing disclosure and discovery.
             31          (a) Disclosure. This rule applies unless changed or supplemented by a rule governing
             32      disclosure and discovery in a practice area.
             33          (a) (1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party shall,
             34      without waiting for a discovery request, provide to other parties:
             35          (a) (1) (A) the name and, if known, the address and telephone number of:
             36          (a) (1) (A) (i) each individual likely to have discoverable information supporting its
             37      claims or defenses, unless solely for impeachment, identifying the subjects of the information;
             38      and
             39          (a) (1) (A) (ii) each fact witness the party may call in its case-in-chief and, except for
             40      an adverse party, a summary of the expected testimony;
             41          (a) (1) (B) a copy of all documents, data compilations, electronically stored
             42      information, and tangible things in the possession or control of the party that the party may
             43      offer in its case-in-chief, except charts, summaries and demonstrative exhibits that have not yet
             44      been prepared and must be disclosed in accordance with paragraph (a)(5);
             45          (a) (1) (C) a computation of any damages claimed and a copy of all discoverable
             46      documents or evidentiary material on which such computation is based, including materials
             47      about the nature and extent of injuries suffered;
             48          (a) (1) (D) a copy of any agreement under which any person may be liable to satisfy
             49      part or all of a judgment or to indemnify or reimburse for payments made to satisfy the
             50      judgment; and
             51          (a) (1) (E) a copy of all documents to which a party refers in its pleadings.
             52          (a) (2) Timing of initial disclosures. The disclosures required by paragraph (a)(1) shall
             53      be made:
             54          (a) (2) (A) by the plaintiff within 14 days after service of the first answer to the
             55      complaint; and
             56          (a) (2) (B) by the defendant within 28 days after the plaintiff's first disclosure or after
             57      that defendant's appearance, whichever is later.


             58          (a) (3) Exemptions.
             59          (a) (3) (A) Unless otherwise ordered by the court or agreed to by the parties, the
             60      requirements of paragraph (a)(1) do not apply to actions:
             61          (a) (3) (A) (i) for judicial review of adjudicative proceedings or rule making
             62      proceedings of an administrative agency;
             63          (a) (3) (A) (ii) governed by Rule 65B or Rule 65C;
             64          (a) (3) (A) (iii) to enforce an arbitration award;
             65          (a) (3) (A) (iv) for water rights general adjudication under Title 73, Chapter 4,
             66      Determination of Water Rights.
             67          (a) (3) (B) In an exempt action, the matters subject to disclosure under paragraph (a)(1)
             68      are subject to discovery under paragraph (b).
             69          (a) (4) Expert testimony. .
             70          (a) (4) (A) Disclosure of expert testimony. A party shall, without waiting for a
             71      discovery request, provide to the other parties the following information regarding any person
             72      who may be used at trial to present evidence under Rules 702, 703, or of the Utah Rules of
             73      Evidence and who is retained or specially employed to provide expert testimony in the case or
             74      whose duties as an employee of the party regularly involve giving expert testimony: (i) the
             75      expert's name and qualifications, including a list of all publications authored within the
             76      preceding 10 years, and a list of any other cases in which the expert has testified as an expert at
             77      trial or by deposition within the preceding four years, (ii) a brief summary of the opinions to
             78      which the witness is expected to testify, (iii) all data and other information that will be relied
             79      upon by the witness in forming those opinions, and (iv) the compensation to be paid for the
             80      witness's study and testimony.
             81          (a) (4) (B) Limits on expert discovery. Further discovery may be obtained from an
             82      expert witness either by deposition or by written report. A deposition shall not exceed four
             83      hours and the party taking the deposition shall pay the expert's reasonable hourly fees for
             84      attendance at the deposition. A report shall be signed by the expert and shall contain a
             85      complete statement of all opinions the expert will offer at trial and the basis and reasons for


             86      them. Such an expert may not testify in a party's case-in-chief concerning any matter not fairly
             87      disclosed in the report. The party offering the expert shall pay the costs for the report.
             88          (a) (4) (C) Timing for expert discovery.
             89          (a) (4) (C) (i) The party who bears the burden of proof on the issue for which expert
             90      testimony is offered shall provide the information required by paragraph (a)(4)(A) within seven
             91      days after the close of fact discovery. Within seven days thereafter, the party opposing the
             92      expert may serve notice electing either a deposition of the expert pursuant to paragraph
             93      (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall
             94      occur, or the report shall be provided, within 28 days after the election is made. If no election
             95      is made, then no further discovery of the expert shall be permitted.
             96          (a) (4) (C) (ii) The party who does not bear the burden of proof on the issue for which
             97      expert testimony is offered shall provide the information required by paragraph (a)(4)(A)
             98      within seven days after the later of (i) the date on which the election under paragraph
             99      (a)(4)(C)(i) is due, or (ii) receipt of the written report or the taking of the expert's deposition
             100      pursuant to paragraph (a)(4)(C)(i). Within seven days thereafter, the party opposing the expert
             101      may serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and
             102      Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall occur, or the
             103      report shall be provided, within 28 days after the election is made. If no election is made, then
             104      no further discovery of the expert shall be permitted.
             105          (a) (4) (D) Multiparty actions. In multiparty actions, all parties opposing the expert
             106      must agree on either a report or a deposition. If all parties opposing the expert do not agree,
             107      then further discovery of the expert may be obtained only by deposition pursuant to paragraph
             108      (a)(4)(B) and Rule 30.
             109          (a) (4) (E) Summary of non-retained expert testimony. If a party intends to present
             110      evidence at trial under Rules 702, 703, or of the Utah Rules of Evidence from any person other
             111      than an expert witness who is retained or specially employed to provide testimony in the case
             112      or a person whose duties as an employee of the party regularly involve giving expert testimony,
             113      that party must provide a written summary of the facts and opinions to which the witness is


             114      expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C). A
             115      deposition of such a witness may not exceed four hours.
             116          (a) (5) Pretrial disclosures.
             117          (a) (5) (A) A party shall, without waiting for a discovery request, provide to other
             118      parties:
             119          (a) (5) (A) (i) the name and, if not previously provided, the address and telephone
             120      number of each witness, unless solely for impeachment, separately identifying witnesses the
             121      party will call and witnesses the party may call;
             122          (a) (5) (A) (ii) the name of witnesses whose testimony is expected to be presented by
             123      transcript of a deposition and a copy of the transcript with the proposed testimony designated;
             124      and
             125          (a) (5) (A) (iii) a copy of each exhibit, including charts, summaries and demonstrative
             126      exhibits, unless solely for impeachment, separately identifying those which the party will offer
             127      and those which the party may offer.
             128          (a) (5) (B) Disclosure required by paragraph (a)(5) shall be made at least 28 days
             129      before trial. At least 14 days before trial, a party shall serve and file counter designations of
             130      deposition testimony, objections and grounds for the objections to the use of a deposition and
             131      to the admissibility of exhibits. Other than objections under Rules 402 and 403 of the Utah
             132      Rules of Evidence, objections not listed are waived unless excused by the court for good cause.
             133          (b) Discovery scope.
             134          (b) (1) In general. Parties may discover any matter, not privileged, which is relevant to
             135      the claim or defense of any party if the discovery satisfies the standards of proportionality set
             136      forth below. Privileged matters that are not discoverable or admissible in any proceeding of
             137      any kind or character include all information in any form provided during and created
             138      specifically as part of a request for an investigation, the investigation, findings, or conclusions
             139      of peer review, care review, or quality assurance processes of any organization of health care
             140      providers as defined in the Utah Health Care Malpractice Act for the purpose of evaluating care
             141      provided to reduce morbidity and mortality or to improve the quality of medical care, or for the


             142      purpose of peer review of the ethics, competence, or professional conduct of any health care
             143      provider.
             144          (b) (2) Proportionality. Discovery and discovery requests are proportional if:
             145          (b) (2) (A) the discovery is reasonable, considering the needs of the case, the amount in
             146      controversy, the complexity of the case, the parties' resources, the importance of the issues, and
             147      the importance of the discovery in resolving the issues;
             148          (b) (2) (B) the likely benefits of the proposed discovery outweigh the burden or
             149      expense;
             150          (b) (2) (C) the discovery is consistent with the overall case management and will
             151      further the just, speedy and inexpensive determination of the case;
             152          (b) (2) (D) the discovery is not unreasonably cumulative or duplicative;
             153          (b) (2) (E) the information cannot be obtained from another source that is more
             154      convenient, less burdensome or less expensive; and
             155          (b) (2) (F) the party seeking discovery has not had sufficient opportunity to obtain the
             156      information by discovery or otherwise, taking into account the parties' relative access to the
             157      information.
             158          (b) (3) Burden. The party seeking discovery always has the burden of showing
             159      proportionality and relevance. To ensure proportionality, the court may enter orders under
             160      Rule 37.
             161          (b) (4) Electronically stored information. A party claiming that electronically stored
             162      information is not reasonably accessible because of undue burden or cost shall describe the
             163      source of the electronically stored information, the nature and extent of the burden, the nature
             164      of the information not provided, and any other information that will enable other parties to
             165      evaluate the claim.
             166          (b) (5) Trial preparation materials. A party may obtain otherwise discoverable
             167      documents and tangible things prepared in anticipation of litigation or for trial by or for another
             168      party or by or for that other party's representative (including the party's attorney, consultant,
             169      surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has


             170      substantial need of the materials and that the party is unable without undue hardship to obtain
             171      substantially equivalent materials by other means. In ordering discovery of such materials, the
             172      court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal
             173      theories of an attorney or other representative of a party.
             174          (b) (6) Statement previously made about the action. A party may obtain without the
             175      showing required in paragraph (b)(5) a statement concerning the action or its subject matter
             176      previously made by that party. Upon request, a person not a party may obtain without the
             177      required showing a statement about the action or its subject matter previously made by that
             178      person. If the request is refused, the person may move for a court order under Rule 37. A
             179      statement previously made is (A) a written statement signed or approved by the person making
             180      it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription thereof,
             181      which is a substantially verbatim recital of an oral statement by the person making it and
             182      contemporaneously recorded.
             183          (b) (7) Trial preparation; experts.
             184          (b) (7) (A) Trial-preparation protection for draft reports or disclosures. Paragraph
             185      (b)(5) protects drafts of any report or disclosure required under paragraph (a)(4), regardless of
             186      the form in which the draft is recorded.
             187          (b) (7) (B) Trial-preparation protection for communications between a party's attorney
             188      and expert witnesses. Paragraph (b)(5) protects communications between the party's attorney
             189      and any witness required to provide disclosures under paragraph (a)(4), regardless of the form
             190      of the communications, except to the extent that the communications:
             191          (b) (7) (B) (i) relate to compensation for the expert's study or testimony;
             192          (b) (7) (B) (ii) identify facts or data that the party's attorney provided and that the
             193      expert considered in forming the opinions to be expressed; or
             194          (b) (7) (B) (iii) identify assumptions that the party's attorney provided and that the
             195      expert relied on in forming the opinions to be expressed.
             196          (b) (7) (C) Expert employed only for trial preparation. Ordinarily, a party may not, by
             197      interrogatories or otherwise, discover facts known or opinions held by an expert who has been


             198      retained or specially employed by another party in anticipation of litigation or to prepare for
             199      trial and who is not expected to be called as a witness at trial. A party may do so only:
             200          (b) (7) (C) (i) as provided in Rule 35(b); or
             201          (b) (7) (C) (ii) on showing exceptional circumstances under which it is impracticable
             202      for the party to obtain facts or opinions on the same subject by other means.
             203          (b) (8) Claims of privilege or protection of trial preparation materials.
             204          (b) (8) (A) Information withheld. If a party withholds discoverable information by
             205      claiming that it is privileged or prepared in anticipation of litigation or for trial, the party shall
             206      make the claim expressly and shall describe the nature of the documents, communications, or
             207      things not produced in a manner that, without revealing the information itself, will enable other
             208      parties to evaluate the claim.
             209          (b) (8) (B) Information produced. If a party produces information that the party claims
             210      is privileged or prepared in anticipation of litigation or for trial, the producing party may notify
             211      any receiving party of the claim and the basis for it. After being notified, a receiving party
             212      must promptly return, sequester, or destroy the specified information and any copies it has and
             213      may not use or disclose the information until the claim is resolved. A receiving party may
             214      promptly present the information to the court under seal for a determination of the claim. If the
             215      receiving party disclosed the information before being notified, it must take reasonable steps to
             216      retrieve it. The producing party must preserve the information until the claim is resolved.
             217          (c) Methods, sequence and timing of discovery; tiers; limits on standard discovery;
             218      extraordinary discovery.
             219          (c) (1) Methods of discovery. Parties may obtain discovery by one or more of the
             220      following methods: depositions upon oral examination or written questions; written
             221      interrogatories; production of documents or things or permission to enter upon land or other
             222      property, for inspection and other purposes; physical and mental examinations; requests for
             223      admission; and subpoenas other than for a court hearing or trial.
             224          (c) (2) Sequence and timing of discovery. Methods of discovery may be used in any
             225      sequence, and the fact that a party is conducting discovery shall not delay any other party's


             226      discovery. Except for cases exempt under paragraph (a)(3), a party may not seek discovery
             227      from any source before that party's initial disclosure obligations are satisfied.
             228          (c) (3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
             229      damages are permitted standard discovery as described for Tier 1. Actions claiming more than
             230      $50,000 and less than $300,000 in damages are permitted standard discovery as described for
             231      Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as
             232      described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions
             233      claiming non-monetary relief are permitted standard discovery as described for Tier 2.
             234          (c) (4) Definition of damages. For purposes of determining standard discovery, the
             235      amount of damages includes the total of all monetary damages sought (without duplication for
             236      alternative theories) by all parties in all claims for relief in the original pleadings.
             237          (c) (5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
             238      collectively, defendants collectively, and third-party defendants collectively) in each tier is as
             239      follows. The days to complete standard fact discovery are calculated from the date the first
             240      defendant's first disclosure is due and do not include expert discovery under paragraphs
             241      (a)(4)(C) and (D).
             242     



Tier


Amount
of
Damages


Total Fact
Deposition
Hours
Rule 33
Interrogatories
including all
discrete
subparts

Rule 34
Requests
for
Production

Rule 36
Requests
for
Admission
Days to
Complete
Standard
Fact
Discovery
             243      1 $50,000
or less
3 0 5 5 120
             244      2 More than
$50,000
and less
than
$300,000
or non-
monetary
relief
15 10 10 10 180
             245      3 $300,000
or more
30 20 20 20 210
             246          (c) (6) Extraordinary discovery. To obtain discovery beyond the limits established in
             247      paragraph (c)(5), a party shall file:
             248          (c) (6) (A) before the close of standard discovery and after reaching the limits of
             249      standard discovery imposed by these rules, a stipulated statement that extraordinary discovery
             250      is necessary and proportional under paragraph (b)(2) and that each party has reviewed and
             251      approved a discovery budget; or
             252          (c) (6) (B) before the close of standard discovery and after reaching the limits of
             253      standard discovery imposed by these rules, a motion for extraordinary discovery setting forth
             254      the reasons why the extraordinary discovery is necessary and proportional under paragraph
             255      (b)(2) and certifying that the party has reviewed and approved a discovery budget and
             256      certifying that the party has in good faith conferred or attempted to confer with the other party
             257      in an effort to achieve a stipulation.
             258          (d) Requirements for disclosure or response; disclosure or response by an organization;
             259      failure to disclose; initial and supplemental disclosures and responses.
             260          (d) (1) A party shall make disclosures and responses to discovery based on the
             261      information then known or reasonably available to the party.
             262          (d) (2) If the party providing disclosure or responding to discovery is a corporation,
             263      partnership, association, or governmental agency, the party shall act through one or more


             264      officers, directors, managing agents, or other persons, who shall make disclosures and
             265      responses to discovery based on the information then known or reasonably available to the
             266      party.
             267          (d) (3) A party is not excused from making disclosures or responses because the party
             268      has not completed investigating the case or because the party challenges the sufficiency of
             269      another party's disclosures or responses or because another party has not made disclosures or
             270      responses.
             271          (d) (4) If a party fails to disclose or to supplement timely a disclosure or response to
             272      discovery, that party may not use the undisclosed witness, document or material at any hearing
             273      or trial unless the failure is harmless or the party shows good cause for the failure.
             274          (d) (5) If a party learns that a disclosure or response is incomplete or incorrect in some
             275      important way, the party must timely provide the additional or correct information if it has not
             276      been made known to the other parties. The supplemental disclosure or response must state why
             277      the additional or correct information was not previously provided.
             278          (e) Signing discovery requests, responses, and objections. Every disclosure, request for
             279      discovery, response to a request for discovery and objection to a request for discovery shall be
             280      in writing and signed by at least one attorney of record or by the party if the party is not
             281      represented. The signature of the attorney or party is a certification under Rule 11. If a request
             282      or response is not signed, the receiving party does not need to take any action with respect to it.
             283      If a certification is made in violation of the rule, the court, upon motion or upon its own
             284      initiative, may take any action authorized by Rule 11 or Rule 37(e).
             285          (f) Filing. Except as required by these rules or ordered by the court, a party shall not
             286      file with the court a disclosure, a request for discovery or a response to a request for discovery,
             287      but shall file only the certificate of service stating that the disclosure, request for discovery or
             288      response has been served on the other parties and the date of service.
             289          Section 2. Legislative note.
             290          It is the intent of the Legislature that when the Court Rules are compiled and printed,
             291      the following language be added as a Legislative Note.


             292          " Legislative Note.
             293          (1) The amended language in paragraph (b)(1) is intended to incorporate long-standing
             294      protections against discovery and admission into evidence of privileged matters connected to
             295      medical care review and peer review into the Utah Rules of Civil Procedure. These privileges,
             296      found in both Utah common law and statute, include Sections 26-25-3 , 58-13-4 , and 58-13-5 ,
             297      UCA, 1953. The language is intended to ensure the confidentiality of peer review, care review,
             298      and quality assurance processes and to ensure that the privilege is limited only to documents
             299      and information created specifically as part of the processes. It does not extend to knowledge
             300      gained or documents created outside or independent of the processes. The language is not
             301      intended to limit the court's existing ability, if it chooses, to review contested documents in
             302      camera in order to determine whether the documents fall within the privilege. The language is
             303      not intended to alter any existing law, rule, or regulation relating to the confidentiality,
             304      admissibility, or disclosure of proceedings before the Utah Division of Occupational and
             305      Professional Licensing. The Legislature intends that these privileges apply to all pending and
             306      future proceedings governed by court rules, including administrative proceedings regarding
             307      licensing and reimbursement.
             308          (2) The Legislature does not intend that the amendments to this rule be construed to
             309      change or alter a final order concerning discovery matters entered on or before the effective
             310      date of this amendment.
             311          (3) The Legislature intends to give the greatest effect to its amendment, as legally
             312      permissible, in matters that are pending on or may arise after the effective date of this
             313      amendment, without regard to when the case was filed."
             314          Section 3. Effective date.
             315          This resolution takes effect upon approval by a constitutional two-thirds vote of all
             316      members elected to each house.


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